Lloyd's Maritime and Commercial Law Quarterly
THE SCOPE OF THE PRINCIPLE IN SCANCARRIERS v AOTEAROA AND ESTATE AGENT’S COMMISSION
Devani v Wells
Delivering the opinion of the Privy Council in Scancarriers A/S v Aotearoa International Ltd (The Barandunna),1 Lord Roskill said that it was contrary to principle to imply a term and add it to terms expressly agreed by the parties, so as to create what would not, without the implied term, be a legally enforceable bargain.2 This dictum was far too widely expressed. The true principle is limited to unilateral contracts, and does not prevent the implication of terms which are to apply if and when such a contract is performed and so becomes bilateral. The dictum has been misapplied by a majority of the Court of Appeal in Devani v Wells
3 so as to prevent the implication of a term in an estate agent’s contract defining the event on the happening of which commission is payable, and therefore to hold it void for uncertainty, contrary to a considerable body of previous authority.
In Devani v Wells, the defendant gave details of some flats he had for sale to the claimant, who was an estate agent. The claimant said that he charged 2 per cent commission. HH Judge Moloney QC found that the defendant “knew at all times that the claimant was an estate agent seeking to introduce a … purchaser for a fee”4 and that the parties intended to
1. [1985] 1 NZLR 513; [1985] 2 Lloyd’s Rep 419 .
2. [1985] 2 Lloyd’s Rep 419, 422; quoted in full infra, fn.43.
3. [2016] EWCA Civ 1106; [2017] 2 WLR 1391.
4. See ibid, [92].
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